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Thursday, July 30, 2015

Jury Trials, Judicial Tyranny and the Seventh Amendment

I believe that people have a 7th Amendment right to a jury trial in civil proceedings if they wish it and that the case for that is established in the history of Common Law and the creation of the 7th amendment.

At one time civil libertarians and progressives were frustrated with Jury trials. KKK members would go to trial and the courts would find them not guilty. Later cops would go to trial and the courts would let them off. It can be really irritating to people who want to see due process, and a lot of people thought that the Jury system was at fault. In some ways they were right, the ability of lawyers and prosecutors to rig who is on Juries is an infringement on the concept. But Jury trials are also one of our constitutional protection against judges.

"If we rely on Judges to adjudicate our rights and protect us from tyranny, who do we rely on to protect us from Judges?"

The Answer is in Juries

The Seventh Amendment is one of those plain text constitutional Amendments that courts ignore and the Supreme Court parses only at the expense of equity and justice. Judges have incredible confidence in their own objectivity. Indeed based on recent cases and studies on expert behavior, their confidence in their own objectivity it usually the inverse of their actual objectivity. Corrupting the interpretation of the 7th amendment transfers power to them, but at the expense of corrupting the judicial process and making it more tyrannical. The purpose of Jury trials is to put a check on Judges, not to provide a means for judges or prosecutors to launder their own opinions.

The plain text of the amendment reads:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

This incredibly important, but ignored amendment has an explicit purpose in line with the struggle of common folks for basic rights in the face of monarchy and various forms of tyranny. It is important because it restates the requirement that people have an individual right to Jury trials and because it reaffirms the link of the courts to the protections of common law. Common law is an inherited body of traditional and judge made law, rights and principles that guide British law and have protected an expanding circle of folks since the people of Britain imposed the Magna Charta on King John in the 13th century.

Link to the Declaration of Independence

The website/blog: "7th Amendment Org" article by Andrew Cochran on July 3, 2011 Quoted the Declaration of Independence:

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: ["7th Amendment Org"]

For quartering large bodies of armed troops among us;

"For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States;"

The Declaration of Independence was referring to the Crown's and it's Governor's abrogation of rights to what in England are called "common courts" and jury trials in favor of Military Courts and Admiralty Courts. Royal Judges were usurping the "rights of Englishmen" in the colonies. And so right to jury trial was considered vitally important as a check on Judicial power.

And Andrew Cochran then notes:

And the Declaration was preceded by the first Virginia Constitution, enacted June 29, 1776, which also condemned King George III, "For depriving us of the benefits of trial by jury," and the Virginia Declaration of Rights enacted on June 12, 1776, in which Article XI states, "That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred." "7th Amendment Org"

Ironically this was authored by Thomas Jefferson, who was in France while the National Constitution was authored.

"As I posted when I opened this website, our Founding Fathers were crystal clear that Americans have an unalienable right to jury trials for civil suits." "7th Amendment Org"

Jury Trials as an inalienable right

He (and other sources) recount the history:

"But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia convention. But the convention declined to extend this right to civil cases. [Another Reagan Conservative who loves Civil Juries]

The Founding Father's weren't unanimous on Jury Trials because many of them were also elitists and they saw juries as a tool to protect the rabble. But the importance of Jury Trials was paramount to the Anti-Federalists and folks pushing actual Democracy and popular rights. He continues:

"This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment." [Another Reagan Conservative who loves Civil Juries]

Thus the 7th Amendment was intended to give common folks a right to Jury Trials if they want it. It was in response to the denial of that right in Admiralty Courts and the tyranny that proceeds from giving concentrated power to anyone. Jury trials evolved in a dialogue between officials and common folks and they've had to fight for their rights for hundreds (thousands of years). This was a "common law right" which meant that people had won the right to judge their peers.

Magna Charta, Common Law and Jury Trials

The "7th Amendment Org" blog is a Conservative blog, the 7th amendment is a conservative principle. Common law is a set of conservative principles. They conserve human and common rights. Common law is meant to embody such traditional rights as principles. People who engage in tyranny and oppression are not conservatives -- they aren't conserving anything except their own power and wealth. When Brits refer to "constitutionality" they are referring to common law, common rights and this compendium of charters, rulings and traditions that are intended to preserve people's rights and regulate their privileges. Anyway the Right to trial by Jury dates to that same Magna Carta:

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." [http://7thamendmentadvocate.org/blog/british-law/]

Originally Juries were a tool to denounce someone, but by the time of the Magna Carta they had become a tool to ensure that justice was done and based on facts and not merely the interpretation of a biased judge (usually convinced he's unbiased).

Corruption of Parsing and interpretation

There are two ways that Judges sidestep law and constitutional protections. They always start out with praise:

"In his 1833 treatise on the Constitution, Supreme Court Justice Joseph Story called the Seventh Amendment “a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.”" [primmer-on-the-7th-amendment.html]

It's when Judges get down to the detail that they do one of two things: They separate out (parse) the parts of a law or amendment, degrading the principle in the law or amendment. Or they simply ignore the principle while narrowly interpreting it's parts and using concepts like scope or standing to deny it to people. Scalia used the former method to claim a personal right to bear arms while ignoring the "A well regulated militia" requirement. In the process he made a messy interpretation that makes it harder to regulate "arms" while doing nothing to really protect anybody. In the 19th century Justices used standing issues to deny the 14th amendment at the same time they started giving personhood rights and person related protections to artificial persons. Judges need the checks of Juries. Sadly the founders gave us a Supreme court unchecked by anything but itself and a weak ability to prosecute corrupt judges.

Effectively Story and subsequent judges reinterpreted the Seventh Amendment out of protection. He used a little of both methods:

"The guarantees of the Seventh Amendment are facially simple; however, a significant body of federal case law has developed explaining and defining the right. At common law, the type of damages that the plaintiff sought, as well as the subject matter of the cause of action, determined which court would hear a litigant's case. Equity and admiralty courts did not have juries, while courts of law did." [AJS]

Equity

Definition, Equity: 1. the quality of being fair and impartial.

"equity of treatment"

synonyms:

fairness, justness, impartiality, egalitarianism;

But here's the thing. The Admiralty courts were precisely the kinds of courts the Declaration of Independence had been protesting and would have wanted jury forms forced on. on them was part of the intention of the amendment in the first place. "Equity courts "handled lawsuits and petitions requesting remedies other than damages, such as writs, injunctions, and specific performance" [wiki].

However, issues of equity are precisely where we need jury trials!

Story used the "interpreting it's parts" method:

Justice Story founded his argument on a parsing of the Constitution. To him in the passage in the constitution that states:

"the judicial power extends to all cases in law and equity, arising under the constitution, the laws, and the treaties of the United States. And by cases in this clause we are to understand criminal, as well as civil cases."

where it says "law" that means common law. And where it says "equity" that falls outside common law as:

And thus the courts have gradually asserted the right to ignore the 7th amendment in cases of "equity"

"After the courts of law and equity were merged in 1938, the Supreme Court developed a "historical test" to reconcile which types of claims received Seventh Amendment protection.

The historical test makes two inquiries:

(1) whether the cause of action was tried at law at the time of the founding, or is at least analogous to one that was, and

(2) if the action in question belongs in the law category, whether the particular trial decision must fall to the jury in order to preserve the substance of the common law right as it existed in 1791."

"The most influential case in the initial development of the Seventh Amendment's historical test came from a Massachusetts federal circuit court. In United States v. Wonson, Justice Story considered whether the United States, as the appellant, could have an additional jury trial following its loss of the first jury trial, a common practice in Massachusetts state court at that time. Justice Story first held that this practice, while existing in the New England states, was not required under a federal statute. Then he added that a second jury trial would violate the Seventh Amendment prohibition on courts of the United States reexamining facts already tried by a jury." [https://www.ajs.org/judicial-administration/jury-center/jury-system-overview/right-jury-trial/federal-civil-case-rules/]

Which is all well and good. The Seventh amendment is plain when it says: "no fact tried by a jury, shall be otherwise reexamined
in any Court of the United States". However, In reviewing the amendment, Justice Story made the following statement:

"Beyond all question, the common law here alluded to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence. It cannot be necessary for me to expound the grounds of this opinion, because they must be obvious to every person acquainted with the history of the law." [federal-civil-case-rules/]

Which again is all well and good except the amendment is meant to modify common law. Expand it. The parsing occurs when someone takes something that has plain text "right of trial by jury shall be preserved" and then applies "only if the Common law of 1791 would have given a right to trial by jury.

Historical Trickery

However, the irony is that the trickery here was on the part of the authors of the amendments. Maybe that is why Mason refused to vote for the Constitution or even support it with the Bill of Rights. Clearly Mason and the majority of people associated with the 7th amendment wanted jury trials to be a inalienable right. But the authors of the amendment limited it to "common law" to deliberately inject some ambiguity -- and it worked. Story would complete the basis of this argument:

"Beyond all question, the common law here alluded to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence. It cannot be necessary for me to expound the grounds of this opinion, because they must be obvious to every person acquainted with the history of the law." [AJS]

This sounded reasonable, but "Common Law" has multiple interpretations. And this isn't necessarily the best or the last interpretation. The Authors of the AJS article referenced note that "second possibility is that the common law should have been understood as the general law." [libertyLawsite] That is the common law as understood by jurists and legislators across the country as being that compendium of traditions, charters and principles I mentioned earlier. With that interpretation there would be no parsing the right to jury trial according to whatever rights were in place before the constitution was ratified, but to the ideal condition sought by Mason and Madison where all persons would have a right to a jury trial if they sought it. That interpretation doesn't really contradict Story, after all that is what "grand reservoir" refers to. But subsequent judges and legal experts have used that decision to narrow his meaning to that "original" interpretation.

Or the third possibility is that Mason was right and the 7th amendment was a bait and switch which didn't adequately address the concerns he raised at the Constitutional Convention and later at the Virginia Ratification battle. He was against the Constitution initially because it didn't contain a bill of rights. And he remained against it after Madison took his suggestions and put them in writing and they were passed as the Bill of Rights. Personally, I think that the amendment says what Mason wanted it to say and that this is a matter of the usual parsing.

Sweeping Proclamations still get parsed

As the AJS site notes:

"Because succeeding federal judges did not dare challenge Justice Story's "sweeping proclamation," the Supreme Court has almost exclusively applied a historical test that defines the Seventh Amendment's "rules of the common law" by reference to the laws of England as of the date of adoption in 1791, not to those of the various United States." [AJS]

Thus the corruption in the interpretation of the 7th amendment is also a corruption in the interpretation of Story. Subsequent judges have used this "historical" parsing to limit the right to a jury trial!

"Therefore, under the historical test, the first clause of the Seventh Amendment ensures jury trials in suits seeking legal remedies, those that empanelled a jury under the English common law at the time the amendment was adopted on December 15, 1791. Consequently, suits seeking equitable remedies, customarily heard by courts of equity or admiralty that did not receive a jury trial at English common law in 1791, do not receive Seventh Amendment protections. While not every award of monetary relief constitutes a legal remedy, federal law has consistently held that the recovery of money damages for injury to persons or property is generally characterized as a legal remedy. Suits for punitive damages have been held to seek a legal remedy, but suits for restitutionary damages have been held to seek both legal and equitable remedies." [AJS]

Convenience and Corruption

But of course this is incredibly convenient to Judges who don't want the bother of empaneling a jury, listening to their complaints and forcing the litigants to make their case.

It's been misinterpreted, pretty much on purpose. The courts and legislature have done everything in their power to gut the 7th amendment when it wasn't convenient to them. Even the:

"Meaning of the $20 clause: When the 7th Amendment was written in the 1791, $20 was considered a lot of money.
Today, any disputes that involve amounts less than $75000 will not be handled in a federal court." [7th-amendment.htm]

I looked up the conversion factor and running $20 through their calculator I got this result:

"In 2014, the relative value of $20.00 from 1789 ranges from $554.00 to $8,780.00" [relativevalue.php]

Yes, 20$ was a lot in 1789, but it wasn't the equivalent of $75,000.00 [relativevalue]. This is a plain example of using cheap and lazy interpretation to parse out the meaning of something. If the Statute were to be constitutional then people would be limited to lawsuits at a maximum of $8,780.00. Even raising it to $8,780.00 is violating the intent of the amendment in some ways. In some cases even $20.00 is too much. If one is itinerate, poor, imprisoned. $20.00 is a substantial barrier and $554.00 is a large sum for even middle class people. The $75,000.00 sum is arbitrary and unconstitutional. But the funny thing is that it will never get to the Supreme court, on standing issues. Also a result of judicial hostility to actually implementing the seventh amendment.

The Principle has to be more important than the parsing

Fortunately, on some level, at least some SCOTUS judges understand this:

"The Supreme Court also extends the amendment's jury guarantee to statutory claims unknown to the common law, requiring only that the claims "sound basically in tort" and seek legal relief. For example, applying the historical test to Title VII claims under § 1983, the Court has held that the statutory cause of action, though nonexistent at the time of the adoption of the Bill of Rights in 1791, is an action at law within the meaning of the Seventh Amendment and receives the guarantee of a jury trial." [AJS]

And the article continues:

"Similarly, the Seventh Amendment also protects legal common-law causes of action included in congressional acts that attempt to delegate fact-finding away from the jury. The Supreme Court's analysis in such cases includes an article III examination of whether or not Congress has overstepped the constitutional bounds of its power under article I by legislating the types of cases federal courts can hear." [AJS]

Judicial Hostility to the 7th Amendment

There are many cases where Juries need to be an appellate function over bureaucratic courts and similar if one applies the plain text of the amendment. But thanks to the interpretation of Story's decision the legislature and Judges can infringe on that right.

"Congress may decline to provide jury trials for causes of action involving statutory "public rights" or suits to which the federal government is a party, but it cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity. The Court has recognized that if Congress was able to assign fact-finding in private causes of action to administrative agencies or other tribunals not involving juries, "Congress could render the Seventh Amendment a nullity." [AJS]

But even that, this claim that "public rights" are outside the scope of the 7th amendment is specious interpretation. The second clause of the Seventh Amendment states:

"[N]o fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the Common Law."

However the website explains:

"The Supreme Court excludes remittitur and judgments as a matter of law from the Seventh Amendment definition of reexamination. Directed verdicts were utilized at common law based upon errors of law or evidentiary insufficiency. Therefore, such reexamination is permitted under the amendment. This form of intervention by the trial court, however, does not really affect the function of the jury because fact-finding is still exclusively within the jury's purview." [AJS]

Such re-examination doesn't really reflect the juries error so much as that of the Judges and opposing parties. For most of our countries history Juries and respect for juries have served as a check on officials, legislators, and judges.

Nullifying and Denying the Right to a Jury Trial

A number of recent cases have shown that Judges, appellate judges and others are doing their best to deny people even access to a jury trial, and are overturning the "long established" principle that juries make jury awards:

"It has long been established that the calculation of the amount of compensatory damages for noneconomic injury, such as pain and suffering, is a question of fact reserved for the jury. The Supreme Court holds this function of a jury in high regard, and jury fact-finding on damages, if supported by the evidence, cannot be simply thrown out. In fact, outside of certain narrow circumstances, any reexamination of jury awards raises Seventh Amendment concerns." [AJS]

In an article shared with me by "Addicting Information" the story of some contractors who sued their private story was told. Once again the military was burning hazardous wastes in hazardous condition "burn pits" and they were using a private contractor who was exercising it's own discretion and in the process harmed most of it's employees and anyone who happened to be nearby. Those people sued, in Oregon and in other courts and on November 3rd 2012:

"After a 3 week trial, the jury deliberated 2 days, and found KBR guilty of negligently exposing the American soldiers to sodium dichromate, a cancer causing toxin substance containing hexavalent chromium. The soldiers complained of respiratory ailments after being exposed in Iraq near a water treatment plant." [KBR Verdict]

That should have been the end of it but:

However KBR took the case to higher court:

"The 9th U.S. Circuit Court of Appeals overturned an $85 million jury award to a dozen Oregon National Guard soldiers who said they were sickened from guarding a water treatment plant during the Iraq War....The three-judge panel heard oral arguments May 4 in Portland and came back with a surprisingly fast decision. The brief opinion only addressed the question of jurisdiction, and it found an insufficient link between KBR and Oregon." [http://www.columbian.com/news/2015/may/14/85-million-award-oregon-soldiers-overturned/]

The thing is if there is an "inalienable right to a Jury trial" then appellate courts should have no right to throw out or deny people's right to a jury trial. And that applies, even if the litigants were suing the government because jury trials are also connected with the right to petition the government, and just plain basic rights.

The reality remains, an inalienable right is something that remains even after it's infringed. The government doesn't have the right to immunize any private contractor from litigation or itself. Not and call itself a just government. Yet that is what our government does regularly. It's unjust. A jury trial is a precious right.